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Doe v. Zwelling11/4/2005
In this action to recover damages for professional malpractice, the plaintiff alleged that, while being treated by the defendant, a health care provider, the defendant breached the applicable standard of care in several respects, including engaging in "an inappropriate and extraprofessional relationship with Plaintiff's wife." The sole question presented on appeal is whether the plaintiff's cause of action for professional malpractice is barred by Code § 8.01-220, the "heart balm" statute.
Facts and Proceedings
John Doe, the plaintiff, brought this action against Shomer Zwelling, a licensed clinical social worker , for professional malpractice. The defendant filed a demurrer to the original motion for judgment on the ground that the plaintiff's cause of action, while ostensibly a claim for professional malpractice, was, in fact, an action to recover damages for alienation of affection, which had been abolished by Code § 8.01-220. The court sustained the demurrer and the plaintiff, by leave of court, filed an amended motion for judgment.
Because the case comes to us upon a demurrer to the amended motion for judgment, which is complete and does not incorporate by reference allegations in the original motion for judgment, we address only the allegations contained in the amended motion for judgment. Fuste v. Riverside Healthcare Assoc., 265 Va. 127, 129-30, 575 S.E.2d 858, 860 (2003). The facts will be summarized as set forth in the amended motion for judgment, and will be considered, along with those reasonably and fairly implied from them, in the light most favorable to the plaintiff. Id.
The defendant is a licensed clinical social worker in Williamsburg, Virginia, providing professional psychotherapy and counseling services. The plaintiff's wife had been treated professionally by the defendant from early 1999 until 2001, for psychological problems and to improve the relationship between husband and wife. In 2001, the defendant suggested that the relationship between husband and wife would improve if the defendant were also to treat the husband individually. The plaintiff then entered into a professional relationship with the defendant, who thereafter treated both husband and wife separately. During the defendant's treatment of the plaintiff, the defendant asked for intimate details concerning the plaintiff's relationship with his wife and his past sexual, emotional and social history. The defendant cautioned that the substance of these confidences should never be revealed to plaintiff's wife and intimated that she might become suicidal if she learned of them. The defendant told the plaintiff that his wife had been sexually abused as a teenager and that she could not "express love in a normal, healthy way due to the traumatic experiences she had undergone." The plaintiff was unwilling to submit to the defendant's suggested treatment consisting of "Buddhist meditation" and "spiritual meditation retreats," and the defendant then advised him to take psychotropic drugs. The defendant referred him to a psychiatrist who prescribed such drugs, which the plaintiff took.
The plaintiff concluded that both his emotional condition and his marriage were deteriorating rather than improving while he was under the defendant's care. Consequently, he withdrew from the defendant's treatment in August 2002. At about the same time, the plaintiff's wife told him that she wished to terminate the marriage.
The plaintiff thereafter discovered that the defendant had been maligning him during the treatment of his wife, disclosing to her intimate details that the plaintiff had disclosed to the defendant in confidence and that before, during, and after defendant
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